Jefferson M. Moore, Jr. v. The State of Texas--Appeal from 7th District Court of Smith County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2007 » Jefferson M. Moore, Jr. v. The State of Texas--Appeal from 7th District Court of Smith County

State: Texas

Court: Texas Northern District Court

Docket No: 12-06-00293-CR

Case Date: 09/05/2007

Plaintiff: Jefferson M. Moore, Jr.

Defendant: The State of Texas--Appeal from 7th District Court of Smith County

Preview:Wilbert Earl Battles v. The State of Texas--Appeal from
104th District Court of Taylor County
Opinion filed April 20, 2006
Opinion filed April 20, 2006
In The
Eleventh Court of Appeals
No. 11-05-00166-CR
WILBERT EARL BATTLES, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 14,961-B
O P I N I O N
The jury convicted appellant of the state jail felony offense of possession of less than one gram of cocaine. The trial
court assessed punishment at eighteen months confinement in the State Jail Division of the Texas Department of
Criminal Justice. In his sole appellate issue, appellant argues that the trial court erred in allowing the State to impeach
him with a seventeen-year-old felony conviction for credit card abuse. We reverse and remand.
Background Facts
The evidence at trial showed that, during the afternoon of June 18, 2003, Officers Rodney Smith and Tommy Pope of
the Abilene Police Department were patrolling an area of Abilene known for drug activity. The officers saw appellant
walking down the street, and they decided to talk with him. Officer Smith got out of the van to talk with appellant.
Officer Smith testified that, after he got out of the van, he saw appellant throw a crack pipe to the ground. The
evidence showed that a crack pipe is used to smoke crack cocaine. Officer Smith said that he picked up the crack pipe
and placed appellant under arrest.
Officer Pope testified that he searched appellant at the scene. Officer Pope said that he found a Bic lighter and a Chore
Boy B a copper scouring pad used to filter crack cocaine when smoking it B in appellant=s front right pants pocket.
Officer Pope also testified that the crack pipe had a Chore Boy in it.
The officers took appellant to the Law Enforcement Center, where they processed the evidence and interviewed
appellant. The officers testified that appellant asked whether he could do anything to help his case. Officer Smith said
file:///C|/Users/Peter/Desktop/opinions/PDFs1/8232.html[8/20/2013 7:28:28 PM]

that appellant offered to assist the police as an informant in exchange for consideration on his possession charge.
Based on appellant=s offer to provide information, Officer Smith said that he agreed to hold off on filing a charge
against appellant. Appellant was released on the day of his arrest. Officer Smith testified that appellant failed to
provide any information to the police. Therefore, on July 29, 2003, Officer Smith submitted the crack pipe to the
Department of Public Safety Lab for testing.
Bill Chandley, a chemist with the DPS, tested the crack pipe for cocaine. He said that residue in the crack pipe tested
positive for cocaine.
Appellant testified that he found the crack pipe in question, along with a Chore Boy, on the street in his neighborhood
and that he was walking to a dumpster to throw the crack pipe away when the officers stopped him. Appellant said that
he knew what a crack pipe was used for but that he had not smoked crack cocaine in the crack pipe. He said that he
did not know whether there was any cocaine in the crack pipe. He said that he dropped the crack pipe on the ground
after the officers stopped him. Appellant testified that the officers searched him at the scene. Appellant said that he did
not have a Chore Boy in his pocket and that Officer Pope had lied to the jury when he testified about finding a Chore
Boy in appellant=s pocket.
Appellant testified about the discussions at the Law Enforcement Center. Appellant said that the officers brought up the
subject of him working for them as an informant. He said that the officers questioned him about three men and that the
officers told him, if he could get these three men, he could go on with the rest of his life. Appellant said he believed
the officers had agreed to drop the charges in exchange for his assistance. He said that, after the discussions at the Law
Enforcement Center, the officers dropped him off in an alley on Pine Street. Appellant testified that, later that day, he
called Officer Smith and provided him with information leading to the arrest of one of the three men.
During cross-examination of appellant, the trial court allowed the State, over appellant=s objection, to impeach
appellant with a seventeen-year-old felony conviction for credit card abuse. The trial court found that the probative
value of the conviction on the issue of appellant=s credibility substantially outweighed its prejudicial effect to
appellant. The State questioned appellant about the conviction and introduced a copy of the pen packet relating to the
conviction.
Admissibility of Remote Conviction for Impeachment
Tex. R. Evid. 609(a) provides that the credibility of a witness may be attacked by admitting evidence that the witness
has been previously convicted of a felony or a crime of moral turpitude if the trial court determines that the probative
value of admitting the evidence outweighs its prejudicial effect. Tex. R. Evid. 609(b) limits Rule 609(a) by providing
that evidence of a prior conviction is inadmissible if more than ten years have elapsed since the later of the date of
conviction or of release from confinement:
[U]nless the court determines, in the interests of justice, that the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its prejudicial effect.
The age of a conviction is measured from the date of the conviction or release, whichever is later, to the date the
evidence of the conviction is offered at trial. Sinegal v. State, 789 S.W.2d 383, 387 (Tex. App.CHouston [1st Dist.]
1990, pet. ref=d). In this cause, appellant=s prior conviction occurred in 1988, and appellant received a five-year
sentence for the conviction. The record shows that, with time credited, appellant=s sentence began to run on December
20, 1987. Although the record does not show the date of appellant=s release from prison, the latest date appellant could
have been released was December 20, 1992, about twelve years before the trial date in this cause. Rule 609(b) applies
to the admissibility of appellant=s prior conviction because appellant=s release occurred more than ten years before the
trial date in this cause.
The trial court has wide discretion in deciding the question of admissibility of a prior conviction, and its decision will
file:///C|/Users/Peter/Desktop/opinions/PDFs1/8232.html[8/20/2013 7:28:28 PM]

not be reversed unless an appellant shows a clear abuse of discretion. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim.
App. 1992); Hankins v. State, 180 S.W.3d 177, 180 (Tex. App.CAustin 2005, pet ref=d); Hernandez v. State, 976
S.W.2d 753, 755 (Tex. App.CHouston [1st Dist.]), pet. ref=d, 980 S.W.2d 652 (Tex. Crim. App. 1998). In Theus, the
Court of Criminal Appeals set forth five nonexclusive factors that trial courts must use in determining whether the
probative value of a conviction outweighs its prejudicial effect. Although Theus involved Rule 609(a) and did not
involve a remote conviction under Rule 609(b), we find its balancing test for probative value instructive for the
purposes of a Rule 609(b) analysis. See Hankins, 180 S.W.3d at 180-81.[1] Under Theus, in weighing the probative
value and the prejudicial effect of a conviction, a trial court must consider (1) the impeachment value of a prior crime,
(2) the temporal proximity of the prior crime relative to the charged offense and the defendant=s subsequent history,
(3) the similarity between the prior offense and the charged offense, (4) the importance of the defendant=s testimony,
and (5) the importance of the credibility issue. Theus, 845 S.W.2d at 880.
Impeachment Value
The impeachment value of crimes that involve deception is higher than the impeachment value of crimes that involve
violence. Theus, 845 S.W.2d at 881. Credit card abuse is a crime of deception rather than of violence; and, thus, a
credit card abuse conviction may have high impeachment value. See Tex. Pen. Code Ann. ' 32.31 (Vernon Supp.
2005); LaHood v. State, 171 S.W.3d 613, 621 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). However, in this
cause, appellant=s conviction occurred seventeen years before trial. A remote conviction must have occurred at a time
sufficiently recent to have some bearing on the present credibility of the witness. Miller v. State, 549 S.W.2d 402, 403-
04 (Tex. Crim. App. 1977); Hernandez, 976 S.W.2d at 761; Sinegal, 789 S.W.2d at 387. Appellant=s conviction for
credit card abuse did not occur Aat a time sufficiently recent@ to have a bearing on his credibility at the time of trial.
Therefore, the conviction had limited, if any, probative value on the issue of appellant=s credibility as a witness. The
first Theus factor weighs heavily against admission in this cause.
Temporal Proximity
A remote conviction may be admissible when the record shows a lack of reformation: that is, if the defendant has also
been convicted of a felony or crime of moral turpitude between the remote conviction and the time of trial. Lucas v.
State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Polk v. State, 865 S.W.2d 627, 631 (Tex. App.CFort Worth 1993, pet
ref=d); Kizart v. State, 811 S.W.2d 137, 141 (Tex. App.CDallas 1991, no pet.); Roberts v. State, 634 S.W.2d 767, 769
(Tex. App.CFort Worth 1982, pet. ref=d). In this case, the record does not show that appellant was convicted of any
felonies or crimes involving moral turpitude between the credit card abuse conviction and the time of trial.[2]
Therefore, the second factor, temporal proximity, weighs against admission in this cause because the conviction
occurred so long before appellant=s trial.
Similarity of Offenses
When a defendant=s prior offense and the charged offense are similar, a danger arises that the jury will convict the
defendant based on a perception of past conduct rather than based on the facts of the charged offense. Therefore, if the
prior offense is similar to the charged offense, the third factor weighs against admission of the prior conviction. Theus,
845 S.W.2d at 881. Here, appellant=s prior offense and the charged offense are dissimilar. Therefore, the third factor
weighs in favor of admission.
Importance of Defendant=s Testimony and Credibility
The fourth and fifth Theus factors are related and address the nature of the defense and the means available to a
defendant to prove that defense. If a defendant presents a defense through the testimony of other witnesses, the
defendant=s credibility may not be a critical issue. However, when a case involves only the testimony of the defendant
and the State=s witnesses, the importance of the defendant=s credibility and testimony escalates. As the importance of
the defendant=s testimony escalates, so will the need to allow the State an opportunity to impeach the defendant=s
credibility. Theus, 845 S.W.2d at 881. In this case, appellant was the only defense witness and the only witness who
testified that he did not commit the offense. Appellant=s testimony contradicted the police officers= testimony. For
file:///C|/Users/Peter/Desktop/opinions/PDFs1/8232.html[8/20/2013 7:28:28 PM]

example, appellant testified that Officer Pope did not find a Chore Boy in his pocket during the search. Appellant also
said that the police officers initiated the conversation about appellant working for the police as an informant.
Appellant=s defense depended almost entirely on his testimony and credibility. Therefore, the fourth and fifth Theus
factors weigh in favor of admission of the prior conviction.
Conclusion
Appellant=s prior conviction happened so long ago that it had little, if any, probative value on the issue of appellant=s
credibility at the time of the trial in this case. Thus, even though some of the Theus factors favor admission, the lack of
probative value of the seventeen-year-old conviction overrides those factors. The State did not show that the probative
value of the prior conviction substantially outweighed its prejudicial effect. Therefore, we hold that the trial court
abused its discretion in admitting the evidence of appellant=s prior conviction.
Harm Analysis
When a trial court errs in admitting a prior conviction, the appellate court reviews the record to determine whether the
trial court=s error affected appellant=s substantial rights. Tex. R. App. P. 44.2(b); Hernandez, 976 S.W.2d at 756. It is
well established that a conviction will not be reversed for error in the admission of evidence that did not injure the
defendant. Alexander v. State, 740 S.W.2d 749, 765 (Tex. Crim. App. 1987). In determining whether the error was
harmless, the test is not whether a conviction could have been had without the improperly admitted evidence but,
rather, whether there is a reasonable possibility that the evidence might have contributed to the conviction or affected
the punishment. Id. Thus, if there is a reasonable possibility that inadmissible evidence might have contributed to either
the conviction or punishment assessed, then the error in admission is not harmless error. In applying the test, the main
consideration is the probable impact of the evidence on the minds of the average jury. Id.; Sinegal, 789 S.W.2d at 388.
Appellant claimed at trial that he did not intentionally or knowingly possess cocaine. Appellant testified that he
planned to throw the crack pipe into a dumpster and that he did not know whether the crack pipe contained cocaine.
His testimony contradicted the testimony of the police officers in many respects. For example, he testified that the
officers did not find a Chore Boy in his pocket, that the officers brought up the subject of him working for the police,
and that he provided information to Officer Smith that led to an arrest. Appellant=s credibility was critical to his
defense that he did not intentionally or knowingly possess the cocaine.
The State emphasized the seventeen-year-old conviction during closing argument:
[PROSECUTOR]: What=s important about a case like B or a crime like credit card abuse is it=s a crime that involves
fraud. It=s a crime that involves dishonesty. And it says something about the credibility of a witness. And here we
have two different versions of the offense. We have B one, we have a person who=s been sent down to prison before
for being dishonest. And then we have two officers.
The State also made the following comments during closing argument:
[PROSECUTOR]: And so basically, I think that this is a really simple case, and instead of treating it like a really
simple case, all this other extraneous stuff is being argued to try to take away from the simplicity of it, because what it
all boils down to is we have a person who=s been to prison for a crime involving dishonesty.
Given the State=s emphasis of the prior conviction during closing argument, we find that there is a reasonable
possibility that admission of the prior conviction might have contributed to the jury=s decision to convict appellant.
Therefore, the admission of appellant=s remote conviction constituted reversible error.
On appeal, the State argues that the admission of the prior conviction did not harm appellant, because appellant
admitted in his testimony that he possessed the crack pipe. However, the State could not satisfy its burden of proof by
file:///C|/Users/Peter/Desktop/opinions/PDFs1/8232.html[8/20/2013 7:28:28 PM]

establishing that appellant possessed a crack pipe. Rather, the State had the burden to prove that appellant intentionally
or knowingly possessed the cocaine. Appellant claimed that he did not intentionally or knowingly possess the cocaine,
and his testimony and credibility were important to his defense. There is a reasonable possibility that the evidence of
the prior conviction contributed to the jury=s decision to convict appellant. We sustain appellant=s issue.
This Court=s Ruling
We reverse the trial court=s judgment and remand this cause to the trial court.
TERRY McCALL
JUSTICE
April 20, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]We note, in Hernandez, the court determined that, in considering admissibility under Rule 609(b), Awe look
exclusively to the strictures of rule 609(b), not to the multiple factors of Theus.@ 976 S.W.2d at 755. We look to the
Theus factors in this case as a guide for determining the probative value and prejudicial effect of appellant=s prior
conviction on the credibility issue. Our holding in this case would be the same using the Hernandez approach.
[2]On appeal, the State asserts that appellant had an intervening conviction for unlawful carrying of a weapon. The
State argues that this conviction may be used to show a lack of reformation. During trial, the prosecutor referred to a
2003 conviction for unlawful carrying of a weapon, and the prosecutor stated that appellant had received a thirty day
sentence in jail and a $300 fine for the conviction. However, the State did not offer evidence of the conviction at trial.
Thus, the State did not prove that the conviction was for a felony or crime of moral turpitude. In the absence of such
proof, the conviction may not be used in considering a lack of reformation. See Davis v. State, 545 S.W.2d 147, 150
(Tex. Crim. App. 1976)(a conviction of a misdemeanor not involving moral turpitude is not considered a lack of
reformation).
file:///C|/Users/Peter/Desktop/opinions/PDFs1/8232.html[8/20/2013 7:28:28 PM]

Download 8232.pdf